Opinion
NOT TO BE PUBLISHED
APPEAL from two judgments of the Superior Court of Los Angeles County Nos. BS109479 & BS110437 David P. Yaffe, Judge.
James L. Markman, City Attorney for the City of La Mirada; Richards, Watson & Gershon, Mitchell E. Abbott and Patrick K. Bobko, for Plaintiff and Appellant City of La Mirada,
Office of the City Attorney for City of Palmdale, Judy Skousen; Rutan & Tucker and William H. Ihrke for Plaintiff and Appellant City of Palmdale.
Fulbright & Jaworski, Colin Lennard and William Troutman; Southern California Association of Governments and Joanna Africa; Miles Chen Law Group and Patricia J. Chen for Defendant and Respondent Southern California Association of Governments.
ALDRICH, J.
INTRODUCTION
At issue in this consolidated appeal is whether a local government’s allocation of the regional housing needs assessment (RHNA), made pursuant to Government Code section 65580 et seq. (the RHNA Law), is subject to judicial review, or whether the remedy is exclusively administrative. The City of Palmdale and the City of La Mirada (the Cities) appeal from the judgments dismissing their petitions for writ of mandate (Code Civ. Proc., § 1094.5) seeking to direct defendant Southern California Association of Governments (SCAG) to revise its allocation of the regional housing needs assessment for the Cities.
All further statutory references are to the Government Code, unless otherwise noted.
The same issue was raised by the City of Irvine. While this case was on appeal, the Fourth District Court of Appeal issued its opinion in City of Irvine v. Southern California Assn. of Governments (2009) 175 Cal.App.4th 506 (Irvine), review denied October 14, 2009, holding that the administrative procedure in section 65584 et seq. is intended to be the exclusive remedy. (Irvine, supra, at p. 510.) We conclude that the analysis in Irvine is well-reasoned and persuasive, and the Cities have not demonstrated satisfactorily why we should not follow it. Accordingly, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
1. Statutory overview
The Legislature enacted the RHNA Law to address California’s shortage of affordable housing. Declaring “the early attainment of decent housing and a suitable living environment for every Californian... [to be] a priority of the highest order” (§ 65580, subd. (a)), the Legislature created the RHNA Law to determine regional housing needs and allocate the burden of meeting those needs to local governments. To achieve the State’s housing objectives, the RHNA Law requires each local jurisdiction to zone adequate numbers of sites to accommodate the regional housing burden allocated to it (Miller & Starr, Cal. Real Estate 3D (3d ed. 2007) § 25:6, p. 25-21), so that every local jurisdiction shares in the obligation to accommodate the state-wide housing need. (§§ 65584 & 65863, subd. (a).)
The process established by the RHNA Law is undertaken by the various regional councils of governments. They, in conjunction with the cities and counties within their jurisdictions and the California Department of Housing and Community Development (HCD), devise methods for distributing existing and projected housing needs within their regions and for allocating a share of the regional housing need to each local jurisdiction. (§§ 65584, subd. (d)(4).) SCAG, a public agency pursuant to the Joint Exercise of Powers Act (§ 6500 et seq.), is the regional council of governments whose jurisdiction covers six Southern California counties: Imperial, Orange, San Bernardino, Ventura, Los Angeles, and Riverside.
The RHNA Law contains an elaborate and complex process for devising the methodology used to determine each local entity’s allocation of regional housing needs. The HCD determines the existing and projected housing needs for each region of the state. (§ 65584, subd. (a)(1).) The regional council of governments surveys its member jurisdictions to develop “a proposed methodology for distributing the existing and projected regional housing need” to the localities within its jurisdiction. (§ 65584.04, subds. (a) & (b)(1).) Public participation is required. (§ 65584.04, subd. (c).) Based on public comment and revisions, the local council of governments adopts a final methodology for allocating regional housing need. (§ 65584.04, subd. (h).)
Once the methodology is adopted, the local council of governments distributes a draft allocation of regional housing needs based on the methodology to each local government under its authority. (§ 65584.05, subd. (a).) Appeals of the draft allocation plan may be filed with the council of governments. (§ 65584.05, subd. (d).)
After close of the appeal process, the council of governments issues a proposed final allocation plan. It adopts a final allocation plan after holding public hearings. (§ 65584.05, subd. (h).) Then, the HCD determines whether the final allocation plan is consistent with the existing and projected housing need for the region (ibid.), and may “revise the determination of the council of governments if necessary to obtain this consistency.” (Ibid.)
As noted, the RHNA Law includes procedures for administrative appeals. In particular, after receiving the draft allocation plan, local governments may request from their local council of governments revisions of their share of their regional housing need based on specified factors and information. (§ 65584.05, subd. (b).) The local council of governments may accept the proposed revision, modify its earlier determination, or indicate why the proposed revision is inconsistent with the regional housing need. (§ 65584.05, subd. (c).) If the local council of governments does not accept the local jurisdiction’s proposed revision to the local jurisdiction’s satisfaction, the latter may file an administrative appeal of its draft allocation also to the council of governments. (§ 65584.05, subds. (d) & (e).) During that administrative appeal, the council of governments must hold a hearing; receive and consider comments, recommendations, and available data; and issue a written decision that includes information and evidence explaining how its action is consistent with the RHNA Law. (§ 65584.05, subd. (e).) The “final action on an appeal may require the council of governments... to adjust the allocation of a local government that is not the subject of an appeal.” (Ibid.) That is, if an appeal is successful and causes a reduction of the appellant’s housing allocation, the council of governments must then adjust the housing allocation for the other local entities within the same jurisdiction. (§ 65584.05, subds. (e)–(g).)
In addition to this complex and intricate arrangement, in April 2007 after the allocation process at issue here had commenced, the Legislature enacted emergency legislation creating a program specifically for “the fourth revision of the housing element” for municipalities “within the region of [SCAG].” (§ 65584.08, subd. (b).) This statute requires SCAG to hold public workshops (§ 65584.08, subds. (d) & (f)) and develop a long-term growth forecast by five-year increments. (§ 65584.08, subd. (c)(1).) Based on that forecast, the HCD is to determine the existing and projected housing need for the region. (§ 65584.08, subd. (c)(5).)
Applicable solely to SCAG, section 65584.08 also allows for appeals to SCAG of SCAG’s regional housing needs allocation. (§ 65584.08, subds. (g) & (i).) The appeal process affords a local entity “one appeal of its draft allocation to the association....” (§ 65584.08, subd. (i)), and no appeals relating to any adjustments made pursuant to the proposed final allocation plan. (§ 65584.08, subd. (j).)
2. The Cities’ RHNA allocations
Reviewing the appeals according to the usual rules (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318), they show that SCAG was charged with allocating the total regional housing needs as determined by the HCD for the planning period January 2006 to June 2014. In 2007, SCAG approved its RHNA methodology and issued a draft regional housing need allocation plan that called for each of the Cities to create new low-income residential units.
The Cities each filed a petition for writ of mandate (Code Civ. Proc., § 1094.5) seeking orders directing SCAG to vacate its draft and final allocation plans and recalculate the housing need allocations to those cities on the grounds their allocations were disproportionate, unreasonably high, and constituted an abuse of discretion. The City of Irvine also filed a writ petition, which SCAG moved to transfer to Los Angeles County and to consolidate the other two petitions. When it denied the transfer/consolidation motion, the trial court sua sponte issued an order to show cause why the City of La Mirada’s petition should not be dismissed because it did not present a case or controversy that is justiciable by the trial court. After the hearing, the court dismissed the City of La Mirada’s petition on the ground that the amendments to the RHNA Law in 2004 evinced the Legislature’s clear intent to preclude judicial review. The court then sustained without leave to amend SCAG’s demurrer to the City of Palmdale’s writ petition on the same ground. The Cities filed their timely appeals. We consolidated the appeals.
CONTENTION
The Cities contend that the trial court erred as a matter of law in ruling that there is no judicial review of SCAG’s RHNA allocation decision.
DISCUSSION
Article VI, section 10 of the California Constitution gives “[t]he Supreme Court, courts of appeal, superior courts, and their judges.... original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.” “The jurisdiction thus vested may not lightly be deemed to have been destroyed.” (Garrison v. Rourke (1948) 32 Cal.2d 430, 435, overruled on another ground in Keane v. Smith (1971) 4 Cal.3d 932, 939.) “[T]he Legislature cannot alter the jurisdiction over extraordinary writs which is prescribed by the Constitution.” (Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 729.)
However, our Supreme Court recognized that, except as provided in the Constitution, the Legislature has complete power to determine, create, abolish, or limit substantive rights and “to regulate and circumscribe the methods and means of enjoying those rights....” (Modern Barber Col. v. Cal. Emp. Stab. Com., supra,31 Cal.2d at pp. 726-728.) Yet, “[w]hile the courts are subject to reasonable statutory regulation of procedure and other matters, they will maintain their constitutional powers in order effectively to function as a separate department of government. [Citations.] Consequently, an intent to defeat the exercise of the court’s jurisdiction will not be supplied by implication.” (Garrison v. Rourke, supra, 32 Cal.2d at p. 436.) The rule is that “[t]he intent to divest the court of jurisdiction... is not read into [a] statute unless that result is expressly provided or otherwise clearly intended.” (Id. at p. 435, italics added; see also County of San Diego v. State of California (1997) 15 Cal.4th 68, 87.) The question here, therefore, is whether the Legislature clearly intended to preclude judicial review of the RHNA allocation. Four factors reveal clear intent.
As explained, while this case was pending, the Fourth District Court of Appeal issued its opinion in Irvine, supra, 175 Cal.App.4th 506, addressing this very issue. After exhaustively delineating the complex RHNA allocation procedure, the Irvine court affirmed the dismissal of the City of Irvine’s writ petition, holding that the Legislature clearly intended that there be no judicial review of the RHNA allocation. (Id. at p. 517.) The Irvine court explained first that “the nature and scope of a general plan’s housing element and the length and intricacy of the process created to determine a municipality’s RHNA allocation reflects a clear intent on the part of the Legislature to render this process immune from judicial intervention.” (Ibid., italics added.) The intricate statutory scheme and its requirement of public participation, together with the statute’s extensive administrative procedure, the Irvine court explained, evinced the Legislature’s clear intention to eliminate “resort to traditional judicial remedies to challenge a local government’s regional housing needs allocation so as to avoid the disruption of local planning that would result from interference through the litigation process.” (Id. at p. 522.)
As a second ground for its conclusion, the Irvine court cited the 2004 amendments to the RHNA Law, as did the trial court here. Previously, section 65584, subdivision (c)(4) subjected the determination of the council of governments to judicial review pursuant to Code of Civil Procedure section 1094.5. The 2004 amendments eliminated subdivision (c)(4) of former section 65584. (Irvine, supra, 175 Cal.App.4th at p. 521; Stats. 2004, ch. 696, § 3.) Irvine cited the rule of statutory construction that “ ‘ “ ‘any material change in the language of the original act is presumed to indicate a change in legal rights.’ ” [Citations.]’ [Citation.] This presumption applies where ‘the Legislature... delet[es] an express provision of a statute.’ [Citations.] We must presume the Legislature’s deletion of the express provision allowing review by administrative mandamus reflects its intent to preclude that judicial remedy to challenge a municipality’s RHNA allocation under the revised law.” (Irvine, supra, at p. 522.)
As the Cities do here, the City of Irvine argued that the legislative history of the 2004 amendments to the RHNA Law is ambiguous and thus does not express the clear intent necessary to eliminate a judicial remedy. (Irvine, supra, 175 Cal.App.4th at p. 522.) The Irvine court rejected that argument noting “ ‘ “ ‘[t]he very fact that the prior act is amended demonstrates the intent to change the pre-existing law, and the presumption must be that it was intended to change the statute in all the particulars touching which we find a material change in the language of the act.’ ” ’ [Citation.] Thus, when considered along with the clear intent discussed above, the foregoing principles of statutory construction simply buttress our conclusion.” (Ibid.)
A third basis for Irvine’s conclusion that the Legislature clearly intended the administrative process to be the exclusive remedy lies in the fact that whenever a local government successfully obtains a reduction of its RHNA allocation through appeal, the council of governments must reallocate those excess units to other jurisdictions within its region. (§ 65584.05, subds. (e) & (g); Irvine, supra, 175 Cal.App.4th at p. 518.) As a result, the process for RHNA allocation is so interdependent that allowing judicial review “would require the joining of all affected local jurisdictions in the lawsuit, thereby precluding each affected municipality’s completion of its housing element revision.” (Irvine, supra.) SCAG’s jurisdiction includes within its sweep numerous Southern California counties. Hence, judicial review of SCAG’s RHNA allocation would “ ‘delay the allocation for an entire region’ and ‘essentially bottleneck the process and create gridlock while a particular city’s case winds through the courts.’ ” (Ibid.) For the foregoing reasons, Irvine held, “the RHNA allocation procedure do[es] reflect a clear intent to preclude judicial intervention in the process and the trial court properly found it lacked jurisdiction to review the propriety of plaintiff’s RHNA allocation.” (Id. at p. 522.)
Section 65584.05, subdivision (e) reads in part, “The final action on an appeal may require the council of governments... to adjust the allocation of a local government that is not the subject of an appeal.” Subdivision (g) of section 65584.05 then reads in pertinent part, “In the proposed final allocation plan, the council of governments... shall adjust allocations to local governments based upon the results of the revision request process and the appeals process specified in this section.”
Lastly, we agree with the trial court here that the Legislature’s clear intent is also manifested in the 2007 emergency enactment of section 65584.08, applicable solely to SCAG. This statute provides for appeals from SCAG’s RHNA allocation in accordance with the administrative procedures described above in section 65584.05. (§ 65584.08, subd. (i).) The Legislature “is deemed to be aware of existing laws and judicial constructions in effect at the time legislation is enacted. [Citation.]” (People v. Weidert (1985) 39 Cal.3d 836, 844.) Had the Legislature desired to provide for judicial review in the 2007 enactment, it knew how to craft such a provision because it had previously provided for such review in former section 65584, subdivision (c)(4). (Bernard v. Foley (2006) 39 Cal.4th 794, 811.) The Legislature’s failure to allow for judicial review in the 2007 legislation is another confirmation of its clear intent that the administrative appeal would be the exclusive remedy.
The Cities argue that our holding denies them due process. We disagree. As demonstrated by both Irvine’s and our recitation of the administrative procedure, and in particular the appeal process found in sections 65584.05 and 65584.08, the Cities have an elaborate administrative appeal procedure capable of providing complete relief to appellants. (Irvine, supra, 175 Cal.App.4th at pp. 519-520, citing Tri-County Special Educ. Local Plan Area v. County of Tuolumne (2004) 123 Cal.App.4th 563, 574-575.) Ultimately, should local governments desire judicial review, they must address their concerns to the Legislature.
As noted, we asked the parties to submit supplemental briefing on the impact, if any, of the Irvine decision. In their briefs, the Cities argue at length that we should not follow Irvine because that decision is factually distinguishable. However, the legal conclusion that judicial review is not available to the Cities obviates consideration of factual issues. The Cities also argue that Irvine was wrongly decided and is not binding on us. We recognize that “[a] decision of a Court of Appeal is not binding in the Courts of Appeal. One district or division may refuse to follow a prior decision of a different district or division....” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 498, pp. 558-559.) But, in addition to the fact that the Supreme Court denied review of the Irvine opinion, we think Irvine’s reasoning is thorough, cogent, and persuasive, and nothing in the additional briefing persuades us otherwise. Accordingly, we adopt it. Because the trial court here was correct in its conclusion that the RHNA procedures preclude judicial review of the RHNA allocation, it properly dismissed the Cities’ petitions for writ of mandate.
DISPOSITION
The judgments are affirmed. Respondent to recover its costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: KLEIN, P. J., CROSKEY, J.